The rights to freedom of assembly, association and expression are guaranteed by Kenya’s Constitution. Despite these guarantees, laws regarding the right to protest undermine the human rights enshrined in the Constitution and go against Kenya’s international human rights obligations, including the Public Order Act and the Penal Code.
One of the challenges the Public Order Act presents is that it makes it mandatory to notify authorities of any public gathering at least three days in advance, with a maximum of two weeks. However, the Act does not require authorities to acknowledge receipt of these notifications. Worse, the act criminalises failure to give notice, in violation of international standards. The African Commission Guidelines on Freedom of Association and Assembly in Africa stress that protest is a right, and no prior authorisation should be needed.
In practice, Officers Commanding Police Stations (OCSs) often exploit this gap in the law. There have been cases where authorities have torn up notification letters when they receive them, or even just refuse to receive them. In extreme cases, the police arrest protesters for demonstrating even if they did issue notification, since there is no record of it.
The security forces often also exploit these notification requirements to restrict spontaneous protests. By their very nature, spontaneous protests often occur in response to an incident, making it impossible to comply with the three-day notification rule. If a group of people feel the need to respond to an instance of violence or a tragedy that has resulted from negligence — for example, a traffic accident in which a child is knocked down — they simply don’t have time to organise notification. They need to act immediately. International human rights standards demand that spontaneous assemblies be exempt from prior-notification requirements.
These laws in Kenya have effectively restricted people’s right to hold spontaneous protests since they usually result in protesters being arrested. While the notification is supposed to enable police officers to facilitate the protests, in practice, our discussions with protesters indicate that is has been used not only as an authorisation process, but as a tool to stifle legitimate rights. Notification should not be required for spontaneous protests and this should be enshrined in the law.
On 11 February 2020, the Public Order (Amendment) Bill, 2019 was proposed for a second reading by Simon King’ara, the Member of Parliament sponsoring the Bill. It seeks to introduce liability for organisers of protests for any damage caused during protests. This would further restrict the right to protest, which may result in self-censorship: people who want to exercise their right to protest will feel burdened by the heavy sanctions and may choose not to speak out against unjust circumstances. People say they feel if new public order measures are implemented, they would simply think twice before going out on the streets to make their voices heard. I have talked to people who say it would make it feel even more risky.
While the majority members of Parliament voted against the second reading of the Bill, there is every reason to remain concerned and vigilant in light of the two orders issued by the High Court in July 2019. The Court ordered the government to either enact or amend the existing laws or regulations with prescriptions for demarcation of demonstration zones, responsibilities for clean-up costs, maximum numbers, consent of persons/entities adjacent to places where demonstrations were due to take place, with appropriate penalties when the protesters go outside the expectations of the law.
The Court also ordered for the formulation of a Code of Conduct for conveners of demonstrations, which should include detailed explanations of how they intend to protect people not involved in demonstrations from being adversely affected by the protests and that provide a clear line of responsibility of who is liable in case of loss of life or property, or for injuries suffered by members of the public due to such demonstrations. These extensive new regulations would make it extremely difficult for people to exercise their right to protest. Take, for example, the large protests that took place during the Saba Saba march in 2020. It would have been extremely difficult to get full consent from the adjacent buildings as it was a procession.
Also, it’s fairly difficult to link littering to the protesters, and this seems as an unnecessary measure and a further attempt to complicate the process. Yet even more challenging is that the organiser of the protest would have no control of the number of people, since Kenyans who resonate with the issues would join at will. If these new measures are put in place, it will create an atmosphere of fear, and there is good reason to believe the number of people who attend will be reduced, and the message they were trying to get across would be stifled.
These orders unduly restrict freedom of assembly. In particular:
1. Organisers of protests should not be responsible administratively, civilly or criminally. Liability during protests should be personal. The Penal Code has sufficient provisions to deal with theft and damage to property. Imposing all liability on the organiser of a protest is unjustified and disproportionate. The Human Rights Council has held that the requirements for protesters or organisers of protests to contribute or fully bear the clean-up cost is not compatible with Article 21 of the International Covenant on Civil and Political Rights (ICCPR).
2. The requirement to obtain consent from adjacent buildings introduces a system of prior censorship.
3. The requirement for prescription of the demarcation zones for protests may result in demarcation of nondescript zones, which will be futile for purposes of protests.
As the orders remain in place, we will likely see more attempts to restrict freedom of assembly and to enshrine these restrictions in law.
Also, several broad provisions of the Penal Code criminalise breach of peace, riots and unlawful assembly, directly contradicting international human rights standards. The Penal Code further gives much broader powers to security forces to disperse than is allowed under international human rights standards.
Crucially, the security forces are criminally and civilly shielded from liability — even when such force results in harm or death. These laws have resulted in numerous human rights violations against protesters, including excessive use of force to disperse and torture and other ill-treatment. In some cases, they have taken action that has resulted in the death of protesters.
Rather than restricting the right to protest even further, Kenyan authorities should, as a matter of urgency, amend the Penal Code and the Public Order Act to bring them in line with the Constitution and international human rights law and standards that protect and uphold the right to freedom of assembly.